Today the National Press Photographers Association (NPPA) sent a letter to California Governor Jerry Brown urging him to veto SB 142, which would create strict liability for anyone operating a drone over the “airspace overlaying the real property” of another person or entity without “express consent.” The letter was joined by 32 other media organizations.

“We believe this bill will unduly restrict the development of new uses for Unmanned Aircraft Systems (UAS) by establishing a technology-specific restriction that is impossible to comply with, impossible to enforce, and likely will conflict with the existing authority and proposed new regulations of the Federal Aviation Administration (FAA), said NPPA general counsel Mickey H. Osterreicher, in the letter. He went on to say, “while the bill acknowledges the FAA Modernization and Reform Act of 2012, its language flies in the face of both common sense and federal preemption,” adding “the chilling legal repercussions of this bill will tax an overburdened court system and thwart the federal government’s efforts, in which we are participating, to bring about a sensible regulatory regime for this new technology.”

Earlier this summer the California legislature proposed a new “anti-paparazzi” bill, which NPPA opposes. More recently, Actresses Halle Berry and Jennifer Garner testified before the California State Assembly, voicing their support for the bill that carries with it serious First Amendment implications. The measure would make it illegal to photograph a child because of their parent’s job (i.e, acting) without the parent’s permission, and expands the scope of existing California harassment law while increasing the penalty for a violation. Photographers convicted under the measure could face up to year in prison. SB 606 would also allow an aggrieved party to pursue enhanced civil suit against a photographer.

If the bill is ultimately signed in to law, anyone with a camera who tries to get a snapshot of a celebrity’s child could be liable if their conduct “alarms, annoys, torments, or terrorizes the child” and causes “substantial emotional distress.” It’s not the clearest of legal standards, and the bill doesn’t offer much more in the way of explanation, something NPPA General Counsel Mickey Osterreicher took issue with in opposing the bill. “We are extremely concerned that the bill as it pertains to photography and recording is overly broad and vague and infringes upon otherwise protected forms of speech and expression,” Osterreicher said, also noting that the terms used in the bill are “vague and susceptible to subjective interpretation.”

The mercurial relationship between the Hollywood “paparazzi” and the stars they photograph is well documented. Confrontations are not uncommon. Protecting children is certainly a laudable goal, but there are already laws in place for situations when someone, photographer or otherwise, steps over the line. With this in mind, Osterreicher contends that the measure in question unjustifiably blurs the line between actual harassment and valuable First Amendment activities, saying “[the bill] fails to recognize those acts done for valid newsgathering or expressive purposes and in fact creates additional liability for visual journalists and members of the public with a camera.”

“[T]he First Amendment has permitted restrictions on few historic categories of speech, including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct,” Osterreicher continued. “Visual images and recordings of another person, albeit a child, who is out in public where there is no reasonable expectation of privacy should not be added to that list.”

Again, there’s a difference between punishing photographers who harass someone and defining photography as harassment in and of itself.

This isn’t the first time the California legislators have targeted photographers. A 2010 anti-paparazzi law was called into question earlier this year, when a judge threw out charges against a photographer who authorities say was driving recklessly while attempting to get picture of Justin Bieber. The judge said the law was unconstitutionally broad and violated the First Amendment. The NPPA along with the Reporters Committee for Freedom of the Press and six other media organizations filed and Amicus Letter Brief on behalf of the photographer. That ruling is currently under review.

SB 606 passed the California State Assembly and is set to go to appropriations committee. As the bill moves closer to becoming law, legislators should take care not to allow a distaste for the manner in which some photographers conduct themselves to undermine their ability to uphold their duty to defend free speech rights guaranteed to all citizens.

*** UPDATE *** In the wake of opposition from NPPA and other groups the CA Assembly Judiciary Committee made both AB-1256 and AB-1356 “2 year bills.” A 2 year bill is one which will not move out of the policy committee this year. It is eligible to be taken up again at the beginning of the 2nd year of the biennial session thus the term “2 year bill.” In January, the Legislature will hear all bills introduced in the 1st year and those that pass muster will begin to move through the process. This is very significant because every other anti-paparazzi bill that has been introduced has flown through the Legislature. This is the first time one has been held up. While the AB-1256 and AB-1356 are not dead, this indicates the sponsors may have a difficult time getting out of Judiciary in January.

The National Press Photographers Association (NPPA) today sent a letter to California Assembly Member Richard Bloom opposing two recently filed anti-paparazzi statutes that he sponsored. The NPPA was joined by twenty-six other organizations in sending this letter, including the Associated Press Media Editors, Digital Media Law Project at Harvard University’s Berkman Center for Internet & Society, Bloomberg News, North Jersey Media Group Inc., The New Yorker, E.W. Scripps Company, The New York Times, The Los Angeles Times, Society of Professional Journalists, Radio Television Digital News Association, The Associated Press, National Public Radio, Inc., The McClatchy Company, Reuters News, Time Inc., The Washington Post, Reporters Committee for Freedom of the Press, Picture Archive Council of America, Cox Media Group, American Society of News Editors, California Newspapers Partnership, The First Amendment Coalition, Courthouse News Service, The Newspaper Guild, Communications Workers of America, Association of Alternative Newsmedia and San Francisco Bay Media Associates.

The letter is written in opposition to proposed bill AB-1256, “An act to amend Section 1708.8 of, and to add Section 1708.9 to, the Civil Code, relating to civil law.” Proposed bill AB-1256 would expand upon California’s constructive invasion of privacy law. The letter also expresses opposition to AB-1356, “An act to amend Section 1708.7 of the Civil Code, relating to stalking,” which would enhance California’s anti-paparazzi statutes.

“We believe the creation of a civil cause of action for the “constructive invasion of privacy” is overly broad and vague and imposes greater civil penalties upon otherwise protected forms of speech and expression,” wrote Mickey Osterreicher, general counsel for NPPA. Osterreicher continued, “We are also concerned that remedies for invasion of privacy and trespass are already properly addressed by current California statutes and that statutory and punitive damages will further chill free speech and create uncertainty about liability.” “Additionally,” stated Osterreicher, “the definition of “commercial purposes” fails to distinguish those acts done for valid newsgathering purposes and in fact penalizes publishers and broadcasters along with visual journalists and members of the public with a camera.”

In the letter Osterreicher cites recent Supreme Court cases which support NPPA’s position that AB-1256 and AB-1356 are unconstitutional, including U.S. v. Stevens, 559 U.S. ___, 130 S. Ct. 1577 (2010) (holding the Animal Crush Video Prohibition Act of 2010 unconstitutional); California v. Superior Court of California (Raef), Case No. BS140861 (holding California statute AB-2479, an anti-paparazzi statute, unconstitutional); and Branzburg v. Hayes, 408 U.S. 665 (1972) (holding that “without some protection for seeking out the news, freedom of the press could be eviscerated”).

In another related matter a California assembly member withdrew his proposed “ag-gag” bill hours before it was to be considered at a scheduled hearing.

The measure, AB-343, sponsored by Jim Patterson, R-Fresno, originally imposed a “duty to report animal cruelty” that would have required “any person who willfully or knowingly photographs, records or videotapes animal cruelty . . .” to “submit all original photographs, recordings or video to local law enforcement and the owner of the animal(s) or a representative of the owner within forty eight hours of taking such photographs, recordings or video.”

NPPA and other groups opposed the bill as violating the Shield Law provisions of the California Constitution and Code of Evidence; as well as being unconstitutional under the First, Fourth, Fifth and Fourteenth Amendments in that it abridged free speech and press and constituted an unreasonable seizure lacking in due process.

“The NPPA is very proud to have the support of so many state and national organizations in its fight against these ongoing First Amendment erosions,” said NPPA President Mike Borland. “We hope that lawmakers around the country will realize that there is a better way to address their constituent’s concerns than to propose unconstitutional bills,” he added.

DURHAM, NC — The National Press Photographers Association (NPPA) and The Reporters Committee for Freedom of the Press (Reporters Committee) filed a joint “Letter Brief” seeking the dismissal of charges against Bradley Stuart Allen in The People of the State of California v. Becky Ann Johnson et al, Case No. F22194. The brief asserts that Mr. Allen, who is a photojournalist and NPPA member, should not be criminally prosecuted for trespass, vandalism and conspiracy. He was charged after his photographic coverage of an Occupy Wall Street (OWS) protest in Santa Cruz, California last year.

Noting that the First Amendment’s guarantee of press freedom is meaningless if journalists do not possess a concomitant right to gather the news, the brief states that – while the allegedly violated statutes may serve important government interests, they cannot be exempt from First Amendment protection. Application of these laws in the prosecution of a journalist engaged in the constitutionally protected act of newsgathering demands careful balancing of these competing interests.

“While journalists may sometimes violate the letter of the law in order to obtain information of public concern, we believe it is extremely important for the court to also consider when such action occurs in the spirit and exercise of First Amendment rights,” said Sean D. Elliot, NPPA president. “Review of visual reportage subject to criminal penalties without that balance unfairly burdens newsgathering at its most critical need of protection,” he added.

This is just the most recent case where journalists have been interfered with and arrested while covering OWS protests throughout the country. In almost every case, those charges — ranging from disorderly conduct and obstruction of governmental administration to trespass — have been dismissed or the defendant journalists have been acquitted.”

About the National Press Photographers Association (NPPA)

The NPPA is a nonprofit organization dedicated to the advancement of visual journalism in its creation, editing and distribution. Since 1946, NPPA has vigorously promoted freedom of the press in all its forms, especially as that freedom relates to visual journalism.

For more information, contact Mickey H. Osterreicher at 716.566.1484 or go to www.nppa.org. You can also follow us on Twitter@nppa.